Opinion
No. 3-566 / 03-0454
Filed August 13, 2003
Appeal from the Iowa District Court for Fayette County, Alan D. Allbee, Associate Juvenile Judge.
A father appeals from the dispositional order of the district court, denying his request to transfer him physical care of his child. AFFIRMED.
John W. Hofmeyer III, Oelwein, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, W. Wayne Saur, County Attorney, and Nathan Lein, Assistant County Attorney, for appellee.
Barry Mueller, Waukon, for minor child.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
The appeal involves a five-year-old child born out of wedlock, removed from his mother's care, and adjudicated a child in need of assistance. In a dispositional order, the juvenile court continued the child's placement with his half-brother's paternal grandmother. The child's father contends the juvenile court erred in concluding he lacked a legal right to the child's custody. Our review of child in need of assistance proceedings is de novo. In re M.B., 553 N.W.2d 343, 344 (Iowa Ct.App. 1996).
The father argues that he is entitled to physical placement of the child because when the mother lost legal custody, he became the child's sole legal custodian. When the petition was filed, the father's identity was listed as unknown. He had never seen or met his son. After he was identified and found, the petition was amended and he appeared at the adjudication hearing. He participated pro se and stipulated to the adjudication based on the allegations in the petition. He also agreed to continued placement with the half-brother's grandmother. He asked to be considered as a placement if the mother was unable to regain custody. At the disposition hearing, he claimed he should be entitled to custody. However, the court continued the child's custody with the half-brother's grandmother.
Section 232.101(5)( a) states that, whenever possible, the court should permit the child to remain at home with the child's parent, guardian, or custodian. The father contends that this section applies equally to both parents. However, Iowa Code section 232.101(1) (2003) allows the court to enter an order permitting a parent, guardian or custodian at the time of the filing of the petition to adjudicate in need of assistance to retain custody of the child. Furthermore, Iowa Code section 232.102(1) provides:
After a dispositional hearing the court may enter an order transferring the legal custody of the child to one of the following for the purposes of placement:
a. A parent who does not have physical care of the child, other relative, or other suitable person.
b. A child placing agency or other suitable private agency, facility, or institution which is licensed or otherwise authorized by law to receive and provide care for the child.c. The department of human services.
(Emphasis added). Based on the language contained in these statutes, we conclude the parent referred to under section 232.101)(5)(a) is a parent who had physical care at the time of the removal. Even if father had legal custody it would not entitle him to any unique status under the juvenile code. The father is in the same category as any "other suitable person". Section 232.102(1)(a) was amended in 1998 to include "a parent who does not have physical care of the child". This change is in abrogation of In Re J.R.H., 358 N.W.2d 311 (Iowa 1984), lending support to our conclusion. On de novo review of the record we find the placement to be appropriate and in the child's best interest.
Father argues he has acknowledged paternity and therefore has joint legal custody. Because we conclude physical care of the child at time of removal is the criterion for determining which parent is entitled to return of custody under the juvenile code we need not address this argument.
Accordingly, we find no error in the district court's order continuing the child's placement with his half-brother's paternal grandmother.